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[2012] ZAWCHC 388
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Adams v Road Accident Fund (6621/2009) [2012] ZAWCHC 388 (12 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE
NO:
6621/2009
In the matter between:
ODETTE ADAMS
.........................................................................
PLAINTIFF
and
ROAD ACCIDENT FUND
............................................................
DEFENDANT
JUDGMENT DELIVERED ON 12 DECEMBER
2012
LE GRANGE, J:
[1] The
Plaintiff in this matter was involved in a motor-vehicie accident.
The merits of the matter were settled between the parties.
In terms
of the settlement, an apportionment of 70% was awarded in favour of
the Plaintiff. The primary Issue for determination
now is whether the
injuries sustained by Plaintiff in the accident caused the
sequelae
which resulted in her taking early retirement.
[2] Adv P Ela appeared on behalf of
the Plaintiff and Adv R Abrahams for the Defendant. I wish to express
my appreciation for the
complete heads of argument that were filed by
counsel. It was of great assistance in preparing this judgment.
[3] It is not in dispute that the
Plaintiff at the time of the accident was employed, as Deputy Chief
Education Specialist, being
a Post Level 5 position, by the Western
Cape Education Department ("WCED"). She was at the time 54
years .oid. It is
also common cause that on 21 August 2007, the day
of the accident, she was on her way to conduct a school visit in the
Mfuieni
District, CapeTown. At an intersection, her vehicle was
struck from behind by a taxi motor vehicle, causing it to roll. The
vehicle
thereafter came to a sudden stop, on /its side,. .against a
wall. The Plaintiff was assisted and pulled from the car and taken to
a hospital.
[4] In the Plaintiff's case, nine
witnesses testified: the Plaintiff , herself; her husband Mr Adams;
Dr Johan Dippenaar, a qualified
medical doctor with 30 years'
experience, and 25 years of complementary medicine experience; Lyall
Marie Brink an expert physiotherapist;
Elke Carey an expert
occupational therapist; Alex Monru an Actuary; Mr Henry Botha,
Plaintiff' supervisor at the time of the accident;
Dr DriverOowitt an
expert orthopaedic surgeon and Elizabeth Hofmeyr an Industrial
Psychologist.
[5] In the Defendant's case two
witnesses testified, namely, Dr Marks, an orthopaedic expert, and Ms
Besselaar, an Industrial Psychologist.
[6] The two orthopaedic doctors who
were called as expert witnesses compiled a joint minute. According to
the joint minute, Dr Driver-Jowitt
holds the view that the soft
tissue injuries sustained in the accident are the more plausible and
likely cause of the Plaintiff's
subsequent impairment and disability.
He also accepted that the accident was the main contributor that
caused her to take early
retirement.
[7] Dr Harks
expressed a different view. According to Dr Marks, long term spinal
pain can only be attributed to a single event when
structural damage
can be . , identified, Dr Marks holds the view that the time-frame is
crucial, in determining causation in this
instance and that an injury
severe enough to lead; to long term
sequelae
would manifest early, and usually immediately. According to Dr
Marks,, in the absence of evidence of structural damage, the bulk
of
the evidence suggests a single traumatic event that caused a
temporary worsening of an underlying status of the spine, but not
long-term symptoms.
[8] The
Plaintiff's evidence can briefly be summarised as follows. Her duties
and job description as a Deputy Chief. Education Specialist
involved
the implementation of certain performance management systems which,
inter alia
,
involved the evaluation of teachers and-principals at 260 schools in
her designated district. According to her, before the.accident,
she
would visit schools on a daily basis from Monday to Thursday. Fridays
would however be an administrative day at the office.
She testified
that she enjoyed her job, the relationships she built up with
principals at the various schools and the monitoring
of the progress
made.
[9] The Plaintiff, on the day of the
accident, after being pulled from the car by a passing policeman and
the school principal,
described her injuries as a knock on the side
of the head. She immediately felt pain in her arm, neck and lower
back.
[10] According to the Plaintiff, her
husband arrived on the scene shortly afterwards, and took her to the
Louis Leipoldt Hospital
where x-rays were taken. At the Hospital
certain pain medication was administered. As a result of her not
being diagnosed with
any broken bones, she was discharged with a
neck, brace- for the . cervical, whiplash, a sling-for her left arm,
treatment to the
wound on the right side j of her head, and a corset
for her lower back.
[11] The Plaintiff testified that
the next morning was very traumatic for her. as she could hot get out
of bed. She had pain ail
over her body and her husband had to assist
her using the bathroom. Her local family doctor was summoned to the
house. He provided
her with further pain relief medication,and
administered an injection. He also prescribed bed rest to her for
approximately 10
to 14 days. According to the. Plaintiff, she
returned to work after 10 days but was. still suffering debilitating
pain. . She decided
to seek treatment with Doctor Dippenaar.
[12] The Plaintiff further
testified, about the on-going pain that she experienced since the
accident and the medication that she
used since then. She also
testified about the negative impact the lower back pain had on . her
work. According to her, she could
not function at the level, she was
used to at work, and become very despondent about it. She indicated
that she was not able to
visit the same number of schools as
previously and had to scale down her workload.
[13] The Plaintiff also mentioned
that in some instances when she experienced severe pain, her work
supervisor (Mr Botha) would
pick her up in the mornings in order to
limit her driving. Her husband or son would normally assist in taking
her home before the
end of the work day.
[14] The Plaintiff indicated she
experienced pain around her neck, shoulders, right down her backhand
sometimes into her legs. According
to her, the pain was so terrible
that she was unable to fulfil her work commitments and maintain her
work. ethos. As a result,
she decided to apply for 'ill-health
retirement'. This form of retirement would have enabled her to take
early retirement without
incurring any financial penalties. Her
application was however unsuccessful. The WCED did however;try to
accommodate her by providing
her a driver and an assistant to help
her cope with her work. This accommodation by the WCED was
appreciated, but her back pain
did . not improve. She further
explained the'consequences and effect of taking retirement before the
age of 60, and how she eventually
took early retirement 'with
penalties' on 30 June 2011.
[15] The Plaintiff also gave
evidence regarding her career advancement. She intimated that was it
not for the accident, she wouid
have applied for promotion to the
next level as a Chief Education Specialist, being a Post Level 6, as
this was the natural progression
in her career. Regarding retireinent
age, the Plaintiff was adamant that if the accident did not happened,
her intention was to
work to at least 63, with the possibility of
continuing until 65 if she. had achieved a promotion.
[16] In cross-examination, the
Plaintiff was adamant that on the day of the accident, she did inform
the attending doctor at Louis
Leipoldt Hospital of the pain in her
lower back. She further explained that when she first sought
treatment from Dr Dippenaar,
post-accident, the most pronounced pain
initially was in her neck, and that this later progressed to her
back. She was adamant
that on the first occasion when she consulted
Dr Dippenaar after the accident, she did mention the pain in her
back. According
to her, after the accident* she could not recall a
day . without being in Rain as a result of the injuries she
sustained, to her
lower back.
[17] Regarding the prospects of her
promotion, the Plaintiff testified In cross- examination that shortly
after commencing her Post
Level 5 Deputy Chief Education Specialist
position, she applied for a promotion at the WCED, Her application
was unsuccessful due
to the short period for which she had held the
post Level 5 position.
[18] The Plaintiff also confirmed
that she did fulfil the necessary requirements to qualify for a
promotion to the position of Chief-Education
Specialist. It was also
suggested in cross-examination that the Plaintiff was .being properly
accommodated in her position by the
WCED and,that nothing precluded
her. from retiring at age 60 without incurring any financial,
penalties. The Plaintiff testified
that she was professionally
uncomfortable at taking repeated and extended temporary incapacity'
leave. According to her, before
the. accident she was a vibrant,
healthy and energetic individual, but since the accident she is in
constant pain that makes her
sick and despondent.
[19] Dr Dippenaar confirmed that the
Plaintiff was one of his patients and that she had seen him on some
occasions relating to headaches
prior to the accident. He confirmed
that he completed a number of 'Progress Medical Reports' on behalf of
the Plaintiff. He also
testified in respect of the third 'Progress
Medical Report’ completed by him on 17 September 2007.
According to him, the
Plaintiff complained about the stiffness of her
neck and mentioned to him for the first time about her back pain
since the accident.
He stated that it was a mechanical type of
backache, v He also recorded in his clinical notes that the
Plaintiff's back pain arose
since the;. motor vehicle accident, and
that there had not been any prior history of back pain.
[20] Dr
Dippenaar also testified that the Plaintiff had never complained , to
him before the accident about back
:
pain.
He was adamant that the pain that the Plaintiff suffered , had
definitely commenced . after the accident. He further stated
that if
the Plaintiff had suffered a bone injury, like a fracture to her
spine or any part of her skeleton, her pain would have
been
immediate, but if there was. an injury to the soft tissue, it could
take time for it to develop. According to him, 'inflammation
cascade'
takes time, if not days or weeks, to. develop and that the
inflammatory chemicals can cause swelling, stiffness and stagnation
of energy in an area that is injured. He further stated that it is
very plausible that in thos£ circumstances it can take
up to
two weeks before a person is .going to experience any pain or any
discomfort, He also expressed the view that having regard
to his
clinical notes and his evaluation thereof, that the motor vehicle
accident was certainly the incident that caused the Plaintiff's
back
pain.
[21] The Plaintiffs husband, Mr
Desmond Adams, testified that it was always the intention of the
Plaintiff to work until at least
63 years age, and it was never the
intention of the Plaintiff or himself to retire at the ages of 60 and
65 respectively.
[22] The physiotherapist, Lyail
Brink, testified on behalf of the Plaintiff and confirmed the
opinions and content of her medico-legal
report. She confirmed that
when she assessed the Plaintiff in 2009, and before Plaintiff had
taken early retirement from the WCED,
her main complaints were
chronic back and neck pain, with the pain in the lower back being
around the L4 to SI level. According
to. Brink, the Plaintiff
informed her that she began experiencing back pain when she was taken
to Louis Leipoldt Hospital on the
day of the accident. Brink further
confirmed that the Plaintiff complained about pain when sitting and
standing. This affects her
in meetings as well as when she does
computer work. It also affects her concentration and productivity.
[23] Ms Brink confirmed that
notwithstanding the assistance and accommodations given to the
Plaintiff by the WCED, the Plaintiff
continues to experience pain,
even when being driven as a passenger in a motor vehicle or sitting
in front of a computer. According
to Brink, the static position of
the Plaintiff did cause increased neck pain which affected her
concentration, and which pain persists.
[24] In cross- examination, Brink
testified that in the case of a claimant such as the Plaintiff who
experiences chronic back pain,
such pain can commence while one is
working and can increases very quickly. This will affect one's
productivity tremendously and
can have a debilitating effect on one's
concentration and, with the result that one may not be able to cope
to the full extent
that one may normally have done.
[25] Brink also expressed the view
that the injuries the Plaintiff sustained in the accident are very
common. According to her,
a person will initially feel the most pain
in the neck as it has the most movement during impact, while a
person's pelvis stays
fixed during the accident. She further
explained that if a person wore a neck brace and took all the
required medication,, the
heck would normally respond first to
treatment, and then the back would slowly but surely become more
symptomatic.
[26] The occupational therapist,
Elke Carey, confirmed that lower, back pain is commonly aggravated by
static positioning such as
desk work or.standing in the same space,
and also by the. dynamic forces of driving." Ms Carey was of the
opinion that back
pain would be aggravated by the inherent demands of
Plaintiffs work requirements and description, and expressed the view
that the
Plaintiff, suffered from chronic pain, combined with
psychological difficulties, which would decrease her resilience to
pain and
that it was not unreasonable for the Plaintiff to seek and .
obtain early retirement.
[27] The
Plaintiff's work supervisor at the time of the accident, Mr Botha
testified, that the Plaintiff had been a competent educationalist
who
had the trust and respect of the principals with whom she worked.
According to him, she was always rated in her annual assessment
of
performance above normal or good. He confirmed that after the
accident, the Plaintiffs.late-coming and absenteeism became more
marked and the frequency of her absence had increased and had been
like that until her retirement in June 2011. Botha further confirmed
that notwithstanding Plaintiff seeking early retirement due to
ill-health, this request had been refused by the 'Health Risk
Manager'
and instead the department made adjustments to the
Plaintiff's working environment to accommodate her in making it
easier for her
to perform her duties. According to Botha,
notwithstanding these accommodations, the Plaintiff was unable to
cope with the work
expectations and demands of her, she as struggling
to get through the day, and her requests to. leave work earlier
:
1
became more frequent.
[28] Botha further testified that,
prior to the accident, the Plaintiff did not discuss with him her
retirement age or her intentions
and or prospects of taking
retirement. He stated that the Plaintiff had been an ambitious
professional arid that she was definitely
promotion material.
According to him, the ..Plaintiff's chance of promotion, was it not
for the accident/ was above 5.0%. Id cross-examination).feotha
was
adamant that the Plaintiff's chances of being given a. promotion to a
Post Level 6 was more likely than not.
[29] The Plaintiff's orthopaedic
surgeon, Dr Drivier. Jpwitt, confirmed his medicolegal
assessment of the Plaintiff. According
to him, the mechanics of the
accident in which the Plaintiff was involved were complex and
involved a number of different components
which effectively
foilow.ed. on one another, all in a short period of time, because of
the sequence of events. He expressed the
view that four separate and
distinct force-vectors were imposed onto the Plaintiff; the first
being the collision from the rear,
which would have been an
acceleration injury (whiplash); then torsional events, when the
vehicle spun round; then various lateral
forces as the vehicle rolled
onto its side and perhaps rolled several times; and then ultimately
when the vehicle came to a sudden
rest. He confirmed that since the
accident the Plaintiff had been prescribed with a number of heavy
pain medications which would
reduce pain, but also reduce other
neurological functions such as concentration and balance. According
to Dr Driver-Jowitt's view,
the Plaintiff had suffered significant
impairment, even though on the crude clinical examination she may
look normal. He further
stated that given the inadequacies of medical
diagnostic and. other capacities, it is not possible to accurately
analyse and diagnose
many pathologies of the vertebral column.
According to Dr Driver-Jowitt, it will be a fairly naive assumption
that pain follows
injury immediately and stated that many people get
twinges of low back pain, but that's very different from having
incapacitating
back pain, when there had been no complaints of back
pain prior to the accident. He also expressed the view that in his
experience
the injuries sustained, by the-Plaintiff can result in
slow, often delayed, onset of pain in the vertebral, column, with a
progressive
increase over time. He was convinced that there is a
reasonable and plausible link between the accident and the subsequent
disability
suffered by the Plaintiff.
[30] In cross-examination, he was
adamant that the Plaintiff's testimony regarding her injuries and
back pain plausible, and that
it fits in with his broader
understanding and experience in this field.
[31] The Industrial Psychologist,
Elizabeth Hofmeyer, confirmed her medico-legal report that was
compiled in respect of the Plaintiff.
She also confirmed the
Plaintiff's version that she would have worked until at least the age
of 63. Hofmeyer described the Plaintiff
as a young 55 year old and
given her health and her activity levels at the time when the
accident happened, she would have probably
retired at 63 years old.
Hofmeyr was also of the opinion that if the Plaintiff's personal
circumstances changed in respect of her
career progression her
retirement at the age of 65 was possible. In respect of the
possibilities of promotion, Hofmeyr testified
that in evaluating
Botha's evidence, it was her view that of the nine Post Level 6
positions in the province, four of them would
have been impractical
either due to a lack of experience or geography, and that the
Plaintiff would have been well-suited to promotion
to the remaining
five positions.
[32] Alex Munro testified to explain
the methodology applied to his calculation, and prepared a revised
actuarial calculation that
is not in dispute.
[33] The
Defendant's orthopaedic expert,. Dr Marks, testified and reaffirmed
his views as expressed in the joint minute. The nub
of his evidence
is that the Plaintiff's main complaint was nothing more than a
'simple backache.
According to him, this is a common human condition, and it could not
be related to the motor vehicle accident in which the Plaintiff
was
injured. Moreover, the backache could not be a justification for the
Plaintiff's early retirement. Despite Dr Marks' clinical
views, he
confirmed the Plaintiff's credibility was not in question. He also
accepted that the (MMF1) medical form completed on
behalf of the
Plaintiff could have been incomplete. According to him, this would
not have been an unusual experience.
[34] In cross-examination Dr Marks
was adamant in respect of his views that according to his assessment,
the pain the Plaintiff
was suffering was not as a result of the
accident. He confirmed that his impression of the Plaintiff was that
she was very ambitious,
very motivated, and very keen on her career.
He accepted that the accident did set in motion a chain of events in
relation to the
Plaintiff's present scenario.
[35] The Defendant's industrial
psychologist, Ms E Besselaar, confirmed the medico-legal report. Her
evidence did not take the issues
in dispute any further.
[36] The
counsel for the Plaintiff argued that on a conspectus of all the
evidence, the Plaintiff was a credible and reliable witness
and, on a
balance of probabilities, has established that there is a reasonable
and plausible link between the accident and the
subsequent
sequelae
she suffered.
[37] The
Counsel for the Defendant advanced the argument that the injuries
noted in the Compensation for Occupational Injuries and
Diseases Act,
130 of 1993 medical reports could not, as a matter of medical
causation, have resulted in the
sequelae
which led to the Plaintiff taking early retirement. The contention
made on behalf of the Defendant was that since none of the mentioned
medical records provided by the Plaintiff make mention of injury to
the back or back pain eventuating within the first four weeks
of the
accident, there can be no plausible link between the accident and the
injuries she sustained that led to her taking early
retirement. In
support of this proposition, Defendant relies on the following
information, namely, the First Medical Report of
21 August 2007, the
accompanying X-ray report of the same date, the progress reports of
31 August 2007 and 7 September 2007, the
clinical notes of Dr
Dippenaar from 31 August, 7 September and 17 September 2007, and the
MMF 1 Form dated 27 February 2008. It
was also argued that the timing
of the onset of symptoms made it less plausible that there is a
causal link between the accident
and the back injuries complained of
by the Plaintiff.
[38] On a conspectus of all the
evidence presented in this case, I am in agreement with the
contention made by counsel for the Plaintiff
that she was a credible
and reliable witness. The Plaintiff gave a detailed account of the
events that occurred after the accident.
The Plaintiff, in my view
did not try to exagerrate her version of events. In fact, both
Doctors Driver-Jowitt and Marks testified
that the Plaintiff's
narrative cannot be questioned and is credible. The Plaintiff
testified that when she was assisted immediately
after the accident,
she felt pain in her neck and lower back. She was also adamant that
she did mention about her back pain to
the medical practitioner who
attended to her at Louis Leipoldt Hospital emergency unit. According
to her version, which is not
in dispute, she was given a corset upon
being discharged from the hospital. The fact that the MMF1 medical
form does not contain
any of this information can in my view not
negate her version of events as the possibility exists that it was an
omission in view
of Dr Marks' comments that it is not unusual for the
MMF1 to not be fully completed. The evidence by the Plaintiff that
the day
after the accident she needed assistance from her husband to
make use of the bathroom and the attendance of her local doctor to
her house fortify her version that she was in severe pain as a result
of injuries sustained in the accident. The evidence of Dr
Dippenaar,
in my view, is a further indication that the Plaintiff did not
exaggerate her injuries and the related pain she suffered.
[39] Much issue was made of the
timing of the clinical recording of the Plaintiff's mechanical lower-
back by Dr Dippenaar. It is
not in dispute that the Plaintiff at her
initial visit to Dr Dippenaar complained about severe neck pain and
her arms that were
feeling weak. It was only under the heading dated
25 September 2007 that the recording was made about her mechanical
back-pain
since the accident.
[40] The overwhelming evidence
presented by the Plaintiff, however, suggests that there was no
history of back-pain prior to the
accident. The bulk of the evidence
also suggests.that she did not suffer a bone-injury, like a fracture
to her spine or any part
of her skeleton that would have caused
immediate pain, but soft- tissue injuries. Dr Dippenaar expressed the
view that injuries
to the soft-tissue do take time to develop. Brink,
the physiotherapist, had similar views. She explained that the
injuries the
Plaintiff sustained in the accident are very common and
that if a person had been wearing a neck brace and having all the
medication
the neck will normally respond first and then the back
will slowly but surely become more symptomatic. Dr Driver-Jowitt's
evidence
further supports the fact that the Plaintiff had suffered
significant impairment even though on the crude clinical examination
she may look normal.
[41] I have considered the views
expressed by Dr Harks. It is evident from the bulk of the evidence in
this instance that the injuries
sustained by the Plaintiff can result
in slow often, delayed onset of pain in the vertebral column, with a
progressive increase
over time. Having regard to all the evidence, I
am driven to the conclusion that the medical opinion of Dr
Driver-Jowitt is more
plausible in the circumstances of this case and
is accepted above that of Dr Marks. I am satisfied, on a conspectus
of all the
evidence in this matter, that the Plaintiff on a balance
of probabilities established that there is a reasonable and plausible
link between the accident and the subsequent disability suffered by
her.
[42] In lieu of the above, the only
other 3 issues outstanding are the Plaintiff's likely pre-morbid
retirement age, whether Plaintiff
would have been promoted, and the
appropriate contingencies to be applied.
[43] In the joint minute of the
industrial psychologists, Plaintiff's expert states that Plaintiff
would probably have retired at
age 63. Besselaar on behalf of the
Defendant also accepted that this would be a fair assumption. I am
satisfied given the evidence
presented on this issue that, in all
probability, the Plaintiff would have retired at 63 years of age
pre-morbid. I am also satisfied,
taking into account the evidence of
Mr Botha, that the Plaintiff, on a balance of probabilities, would
have had a realistic opportunity
of about 50% of obtaining a
promotion in her uninjured, state.
[44] As to
contingencies, I am satisfied that it would be just and equitable
1
that a 0% contingency should apply in respect of Past Uninjured,
Injured, and Future Injured Income and a 7,5% contingency should
be
applied to Future Uninjured Income. According to the actuary report
accepted by both parties, this will amount to a total loss
of income
of R 1 132 457,50.
[45] The
Plaintiff's claim in respect of genera! damages in the amount of R
200 000, the statutory medical undertaking and the past
medical and
hospital
:
expenses in the amount of R121 389.96, was not seriously attacked by
the Defendant. I am satisfied that the Plaintiff has proven
these
amounts as set out in her particulars of claim and evidence.
[46] It follows that the Plaintiff's
claim against the Defendant must succeed with costs.
[47] In the result, the following
order is made in favour of the Plaintiff.
1. General Damages: The Plaintiff is
awarded in respect of general damages amount of R200 000.00
2. Statutory Medical Undertaking:
The Defendant
is to provide the Plaintiff with an Undertaking in terms of section
17(4)(a) of the Road: Accident Fund Act : (56/1996)
to compensate the
Plaintiff for 70% .of the; costs relating to the future accommodation
of the Plaintiff; in a. hospital or nursing
home or treatment of or
rendering of a service or supplying of goods to the Plaintiff in
relation to the injuries.to the Plaintiff
and the
sequelae
thereof caused by or arising from
the motor vehicle collision which occurred on 21 August 2007, and
after the costs have been incurred
and on proof thereof.
3. Loss of Earnings: The Plaintiff
is awarded an amount of R1 132 457,50
4. Past Medical and Hospital
Expenses: Plaintiff is awarded an amount of R121 389.96 for past
medical and hospital expenses.
5. All these amounts awarded in
respect of quantum are subject to the 70% apportionment in favour of
the Plaintiff that must still
be applied..
18
6. Costs:
Plaintiff to be awarded her costs
of: suit, on a party and party scale, such costs to include the
costs of:
61. Costs of counsel;
6.2. The qualifying expenses of the
following medico-legal experts;
Dr Driver-Jowitt (Orthopaedic
Surgeon)
L. Brink (Physiotherapist)
E Carey (Occupational Therapist)
L Hofmeyr (Industrial
Psychologist)
Alex Munro (Actuary)
6.3. The costs.of obtaining the
Court?recordand the costs of reading the record;
6.4. Costs of preparing Heads of
Argument.
LE GRANGE , J